Lena Levin v. H. S. Peck
| Decision Date | 06 February 1915 |
| Parties | LENA LEVIN v. H. S. PECK |
| Court | Vermont Supreme Court |
November Term, 1914.
DEBT on an appeal recognizance. Plea, the general issue. Trial by the city court of Burlington on September 4, 1914, C. S Palmer, Judge. Judgment for the plaintiff. The defendant excepted. The opinion states the case.
Judgment affirmed.
H S. Peck and J. E. Cushman for the defendant.
Cowles and Stearns for the plaintiff.
Present POWERS, C. J., MUNSON, WATSON, HASELTON, AND TAYLOR, JJ.
This is an action of debt brought in the city court of Burlington on a certain recognizance which is alleged to have been entered into by the defendant upon the allowance of an appeal from a judgment rendered by that court in an action of justice ejectment. The defendant pleaded, among other things, that there was no such record as that set forth in the declaration, and trial was had by the court.
The plaintiff offered the record of the recognizance sued upon as it appeared in the record book of the city court. The defendant objected to the record on the grounds that it did not show the recognizance required by the statute, that the recognizance as taken and shown was void, and that the record did not support the declaration but occasioned a fatal variance.
The condition of the recognizance, as set out in the record book, was that the defendant should prosecute his appeal to effect, and answer and pay all intervening damages occasioned by the delay, with additional cost if the judgment should be affirmed. This is the recognizance required in ordinary justice appeals. P. S. 1651. The recognizance required in justice ejectment appeals is that the defendant will enter the action in the county court and pay the rent then due, and intervening rent, damages and costs. P. S. 1876.
When the above objection was made the plaintiff asked leave to amend the record as it appeared in the record book, in conformity with the facts, by substituting in lieu thereof the minute of the recognizance entered on the original writ. This minute reads as follows: The defendant objected to amending the record by this substitution, and his objection was sustained, the plaintiff excepting.
Thereupon the defendant moved for a judgment, for the reason that the record offered was incompetent to prove the recognizance required by the statute in cases of justice ejectment, and for the further reason that neither the minute of the recognizance on the writ, nor the record thereof as set forth in the record book, sustained the declaration. The motion was overruled and the defendant excepted.
The plaintiff then asked leave to file a written motion to amend the record as contained in the record book, so that it might conform to the facts as claimed. The court inquired into the facts relating to the recognizance, and granted the leave, against defendant's objection, and the motion was thereupon filed. The record was then amended on plaintiff's motion, so that the condition of the recognizance as stated corresponded with the requirement of P. S. 1876; and the record so amended was received in evidence under the defendant's exception.
The entry upon the back of the writ was a sufficient minute of a recognizance taken under P. S. 1876. Although not the record itself, it was an entry as of record. Properly extended on the record book, it would have shown a valid recognizance. The failure to show this was due to a mistake made in the recording. The minute showed that the defendant had become recognized "as provided by law," and the law referred to was manifestly the statute applicable to the case shown by the writ upon which the entry was made. The recording officer erroneously made out the record as if taken under the statute applicable to cases of another class.
The court could direct an amendment of the record to make it conform to the minute entered on the writ. The city court is given the same power over its records that county courts have under the common law or by statute. A county court has a revisory power over its records, and can correct them if erroneously made. Mosseaux v. Brigham, 19 Vt. 457. The fact that this correction was made two years after the recognizance was taken did not render it ineffective. The city court, like the county...
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